Opinion
Case No. 17CA94
08-23-2018
STATE OF OHIO Plaintiff-Appellee v. STEVEN MARQUIS Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee JOSEPH C. SNYDER 38 South Park Street Mansfield, OH 44902 For Defendant-Appellant DANIEL Z. INSCORE Richland Bank Building Suite 703 3 North Main Street Mansfield, OH 44902
JUDGES: Hon. John W. Wise, P.J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2017CR0239 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee JOSEPH C. SNYDER
38 South Park Street
Mansfield, OH 44902 For Defendant-Appellant DANIEL Z. INSCORE
Richland Bank Building
Suite 703
3 North Main Street
Mansfield, OH 44902 Wise, Earle, J.
{¶ 1} Defendant-Appellant, Steven Marquis, appeals his October 4, 2017 conviction for possession of drugs in the Court of Common Pleas of Richland County, Ohio. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant was an inmate at the Richland Correctional Institute. On July 17, 2016, Corrections Officer Michael Thomas observed appellant make a hand-to-hand exchange while out in the yard. Officer Thomas radioed to other officers to search appellant when he returned to his dorm. Corrections Officer Tammy Risinger conducted the search and found suboxone folded in a very small envelope on top of the coffee cup appellant was carrying.
{¶ 3} On April 6, 2017, the Richland County Grand Jury indicted appellant on one count of drug possession in violation of R.C. 2925.11.
{¶ 4} On July 5, 2017, appellant filed a motion to compel discovery, seeking "the security camera footage of the event in question." The state responded and stated the footage did not exist as the security video was only retained for one week. By judgment entry filed August 8, 2017, the trial court denied the motion as the state could not be compelled to provide discovery that no longer existed.
{¶ 5} A jury trial commenced on October 2, 2017. The jury found appellant guilty as charged. By judgment entry filed October 4, 2017, the trial court sentenced appellant to twelve months in prison.
{¶ 6} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
I
{¶ 7} "APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO MOVE TO DISMISS BASED ON DESTRUCTION OF EVIDENCE."
I
{¶ 8} In his sole assignment of error, appellant claims he was denied the effective assistance of counsel for counsel's failure to file a motion to dismiss due to destruction of evidence. We disagree.
{¶ 9} The standard this issue must be measured against is set out in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. Appellant must establish the following:
2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.
{¶ 10} Appellant's version of the incident was that he and a group of inmates were searched by Officer Risinger and he was cleared and permitted to go. However, as he walked away, Officer Thomas entered the room and pointed to something on the ground. Officer Risinger bent down, picked up the item (the suboxone), and called for appellant to return. Officer Risinger advised appellant that the item belonged to him and he denied the allegation. Appellant claims when he went before the Rules Infraction Board, he requested that they review the security camera footage of the incident, but they did not. Appellant now argues his counsel should have filed a motion to dismiss for destruction of evidence along with the motion to compel.
{¶ 11} Counsel's failure to file a motion, " 'in and of itself, is not per se ineffective assistance of counsel.' " State v. Henry, 10th Dist. Franklin No. 16AP-846, 2018-Ohio-1128, ¶ 65, quoting State v. Schlosser, 3d Dist. Union No. 14-10-30, 2011-Ohio-4183, ¶ 34. "Rather, '[w]ithout proving that trial counsel was deficient for failing to make certain motions and that those motions had a reasonable probability of success, the ineffective assistance of counsel claim fails.' " Id.
{¶ 12} Appellant argues because there are conflicting versions of the incident, the security camera footage was materially exculpatory and had defense counsel filed a motion to dismiss for destruction of evidence, the motion would have been granted.
{¶ 13} As explained by the Second District in State v. McClain, 2d Dist. Montgomery No. 26764, 2016-Ohio-838, ¶ 21-22:
The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a criminal defendant from being convicted
when the State either fails to preserve materially exculpatory evidence or destroys, in bad faith, potentially useful evidence. E.g., State v. White, 2015-Ohio-3512, 37 N.E.3d 1271, ¶ 58 (2d Dist.). Evidence is "materially exculpatory" if it (1) possesses "an exculpatory value that was apparent before the evidence was destroyed" and (2) is "of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 74.Accord State v. Newton, 8th Dist. Cuyahoga No. 105771, 2018-Ohio-1392, ¶ 17-19.
"In contrast, evidence is not materially exculpatory if it is merely potentially useful. Potentially useful evidence indicates that the evidence may or may not have incriminated the defendant. The failure to preserve evidence that by its nature or subject is merely potentially useful violates a defendant's due process rights only if the police or prosecution acted in bad faith." State v. Cox, 2d Dist. Montgomery No. 25477, 2013-Ohio-4941, 2013 WL 5974171, ¶ 88. "The term 'bad faith' generally implies something more than bad judgment or negligence. 'It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud.' " (Citations omitted.) Powell at ¶ 81.
{¶ 14} Officer Thomas testified he observed appellant out in the yard shake hands with another inmate. T. at 138. Something dropped to the ground and he observed appellant pick up the item and head back to the housing unit. Id. Officer Thomas radioed the housing unit officers to stop and search appellant. T. at 138-139. When Officer Thomas entered the housing unit, he observed Officer Risinger searching appellant and turning her attention to the coffee cup sitting on the desk right next to him. T. at 139-140, 151. Officer Risinger found a very small piece of paper containing suboxone on the thumb part of the handle. T. at 140-141.
{¶ 15} Officer Risinger testified and corroborated Officer Thomas's testimony. She stated she was instructed to conduct a "for-cause shakedown" of appellant as he entered the housing unit. T. at 164. She found a very small envelope containing suboxone on the coffee cup appellant was carrying. T. at 165-166, 189. Officer Risinger stated appellant told her it was suboxone "and he had just gotten it off the yard." T. at 168. She wrote down appellant's admission on the contraband control slip she generated. T. at 172; State's Exhibit 4. She stated she never had any prior interactions with appellant, and he had never been aggressive with her. T. at 177, 179, 183-184. She acknowledged that video cameras are in the room, but did not know any of the procedures for preserving video. T. at 183.
{¶ 16} Lieutenant Thomas Butler testified although there would be video of the encounter, "if the inmate was compliant during the entire search, there would be no reason to find the video." T. at 199. He stated the videos "don't exist forever." T. at 200. He did not know for how long the video footage was kept. Id. He explained the primary use of video footage was in cases of fighting or violence or the use of force, not incidents of drug possession. Id.
{¶ 17} Ohio State Highway Patrol Trooper Tyler Carr investigated the incident. T. at 243. Trooper Carr stated he would not pull or request a video in a situation where a corrections officer found drugs on an inmate, nor would he seek the video in cases "in which drugs are found on an inmate and the inmate admitted to them to the corrections officer." T. at 260. He did not know the period of time camera footage is preserved before it is recorded over. T. at 257.
{¶ 18} Anthony Saxton, a fellow inmate, testified for appellant. He stated he was inside the dayroom to the dorm when he observed appellant being "shaken down" "as a matter of procedure." T. at 271, 274. After appellant walked away, he observed the female officer point to appellant and called for him to return. T. at 271. When questioned about the specifics of the incident, Mr. Saxton stated "it's a little blur to me." T. at 276. He testified, "I didn't specifically see her pick anything up off the ground." T. at 282. He opined appellant was "cleared" after the shakedown, otherwise he would not have been able to walk away. T. at 278-279, 289. Mr. Saxton also testified to "seeing" the female officer and appellant "engage in a dispute" some time prior to the incident in question. T. at 279. However, Mr. Saxton admitted that he did not see the actual dispute, just the "fallout" i.e., appellant being "pissed." T. at 279-280.
{¶ 19} Appellant testified in his own defense. He stated when he entered the dayroom area, Officer Risinger patted him down, and then he was cleared to walk away. T. at 294-295, 303. As he walked toward Mr. Saxton, Officer Thomas came in off the yard and pointed to something on the ground by the benches. T. at 295. Officer Risinger called for appellant to return and confronted him about what she had found, later confirmed to be suboxone. T. at 220, 225, 295-296. At no time did he confess that the item was his. T. at 296. There were numerous inmates in the area. T. at 293, 295, 304-305. Appellant testified that he and Officer Risinger had had a prior interaction in the shower area that escalated into yelling. T. at 296, 298. Officer Risinger then "tossed" his bunk area, but appellant was not written up for anything. T. at 299. After the suboxone incident, appellant appeared before the Rules Infractions Board. T. at 302. He asked them to review the camera footage, but "they didn't." T. at 303. There is no indication of when appellant went before the board and asked about the camera footage.
{¶ 20} In closing argument, defense counsel brought up the missing video: "They have video, and Officer Carr didn't look ten days after the incident to see, hey, is that still available? I want to know who's lying." T. at 328. "To get that extra degree of certainty, the State needs to get some kind of disinterested, tangible piece of evidence. And in this case, it's the video. Everybody says there's video in the dayroom. So you can draw your own conclusions about that." T. at 331. Defense counsel alluded that Officer Risinger could have planted the suboxone. T. at 328-329.
{¶ 21} The missing footage would either show appellant possessed the suboxone, and was thus inculpatory, or it would show the suboxone was "planted," and exculpatory. Thus, we must first consider whether the camera footage was materially exculpatory.
{¶ 22} Based upon the facts of this case, we find appellant has not shown the missing camera footage to be materially exculpatory evidence. The testimony from the two correctional officers corroborated each other's version of the incident. There is no evidence to suggest any "red flags" were raised before the camera footage was destroyed. Lieutenant Butler testified there would be no reason to review the footage if the inmate was compliant during the incident. The evidence presented demonstrates appellant was compliant. Furthermore, appellant was able to corroborate his version of events "by other reasonably available means," i.e, the testimony of an eyewitness, Mr. Saxton.
{¶ 23} While the evidence may have been potentially useful to further corroborate one version over the other, appellant has not shown that the police acted in bad faith in not preserving the camera footage. Lieutenant Butler testified the footage does not exist forever. There was no evidence to establish the time frame of when footage gets destroyed and when appellant requested a review of the footage. Evidence was not presented to establish when appellant went before the Rules Infraction Board. The investigating officer, Trooper Carr, testified he would not even bother to pull camera footage in a situation where a corrections officer found drugs on an inmate, and especially when the inmate admitted to the corrections officer of having them, as appellant did herein, indicated in Officer Risinger's contraband control slip. There is no evidence to rise to the level of bad faith.
{¶ 24} Appellant has not demonstrated that had defense counsel filed a motion to dismiss for destruction of evidence, there is a reasonable probability that it would have been granted. Appellant has not shown the outcome would have been any different had defense counsel filed the motion. The jury had two corroborating versions to choose from, and heard defense counsel question the whereabouts of the camera footage and the idea that the suboxone was planted. The issue of credibility rests with the jury. State v. Jamison, 49 Ohio St.3d 182, 552 N.E.2d 180 (1990).
{¶ 25} Upon review, we do not find any ineffective assistance of counsel on the complained of issue.
{¶ 26} The sole assignment of error is denied.
{¶ 27} The judgment of the Court of Common Pleas of Richland County, Ohio is hereby affirmed. By Wise, Earle, J. Wise, John, P.J. and Delaney, J. concur. EEW/db 86